Efforts to overturn Prop. 8

2010-AUG: More negative reactions to
the Perry v. Schwarzeneggerdecision

Roman Catholic Cardinal Roger Mahony weighs in:

Cardinal Mahony, the Archbishop of Los Angeles believes that Judge Walker's decision is in error because he focused on the feelings of gays and lesbians who were prevented from marrying by Prop. 8 instead of the facts. He wrote:

"Today it was announced that U.S. District Court Judge Vaughn R. Walker has ruled that Proposition 8 which was enacted by the People of California is unconstitutional. His decision fails to deal with the basic, underlying issue--rather he focused solely upon individual testimony on how Prop 8 affected them personally. Wrong focus."

"There is only one issue before each of us Californians: Is Marriage of Divine or of Human Origin?"

"Judge Walker pays no attention to this fundamental issue, and relies solely upon how Prop 8 made certain members of society "feel" about themselves."

"Those of us who supported Prop 8 and worked for its passage did so for one reason: We truly believe that Marriage was instituted by God for the specific purpose of carrying out God's plan for the world and human society. Period." 7

Judges are required to make decisions based on the federal and state constitutions, and legal precedence. If a judge decided whether marriage is of divine or human origin and ruled accordingly, his future on the bench would be brief.
That type of decision could convert the U.S. into a theocracy, which was certainly not the intent of the founders of America.

Fortunately, the text of Perry v Schwarzenegger is online 5 as is the evidence submitted by the plaintiffs and defendants. 6 So, interested persons can read Judge Walker's logic and reasoning. In his ruling, he extracted, analyzed and described 60 facts from the evidence presented to him. They covered pages 55 to 110 -- a total of 55 pages in his 136 page ruling. Only a hand full of facts discuss feelings.

Statement by ProtectMarriage.com:

CitizenLink, an affiliate of Focus on the Family titled their essay on Prop. 8 " One Man, One Women Marriage 'Irrational'." They implied that Judge Walker included this belief in his ruling. Actually, he didn't. His ruling stated that limiting marriage to one man/one woman was irrational. That is, denying access to marriage by same-sex couples is irrational.

Their article included a statement by ProtectMarriage, the coalition of conservative religious groups that promote Prop. 8.

"Today’s ruling is clearly a disappointment. The judge’s invalidation of the votes of over seven million Californians violates binding legal precedent and short-circuits the democratic process. But, this is not the end of our fight to uphold the will of the people for traditional marriage, as we now begin an appeal to the Ninth Circuit Court of Appeals."

"It is disturbing that the trial court, in order to strike down Prop 8, has literally accused the majority of California voters of having ill and discriminatory intent when casting their votes for Prop 8."

"But the reality is that Prop 8 was simply about restoring and strengthening the traditional definition of marriage as the unique relationship of a man and a woman, for the benefit of children, families and society."

"At trial we built a solid record to show that marriage has served as the foundation of the family and society as a whole, has universal functions and features attributable only to unions between a man and woman, has been defined in both law and language as a union between a man and a woman, and acts as the predominate relationship in which to create and support children."

"We are confident that the trial court record we built will help us ultimately prevail on appeal and reverse today’s ruling."

"Reversing today’s decision will also serve as a reminder that the role of the courts is to interpret and apply the law only as enacted by the people and their elected representatives, not to impose new social policies."

"And federal precedent is clear that there is no constitutional right to same-sex marriage. To prevail in the end, our opponents have a very difficult task of convincing the U.S. Supreme Court to abandon precedent and invent a new constitutional right."

That "very difficult task" is precisely what the U.S. Supreme Court did during 1967 in Loving v. Virginia when it legalized inter-racial marriage across the U.S. 14

CitizenLink issues statement:

"Judge Walker’s ruling raises a shocking notion that a single federal judge can nullify the votes of more than 7 million California voters, binding Supreme Court precedent, and several millennia-worth of evidence that children need both a mom and a dad.

"During these legal proceedings, the millions of California residents who supported Prop 8 have been wrongfully accused of being bigots and haters. Nothing could be further from the truth. Rather, they are concerned citizens, moms and dads who simply wanted to restore to California the long-standing understanding that marriage is between one woman and one man – a common-sense position that was taken away by the actions of another out-of-control state court in May 2008.

"Fortunately for them, who make up the majority of Californians, this disturbing decision is not the last word.

"We fully expect the judge’s decision to be overturned upon appeal. The redeeming feature of our judicial system is that one judge who ignores the law and the evidence must ultimately endure the review and reversal of his actions from the appellate courts.

"We do want Americans to understand the seriousness of this decision, however. If this judge’s decision is not overturned, it will most likely force all 50 states to recognize same-sex marriage. This would be a profound and fundamental change to the social and legal fabric of this country.

"Our Founders intended such radical changes to come from the people, not from activist judges. Alexander Hamilton, in advocating for the ratification of our Constitution in 1788, argued that the judiciary would be ‘the least dangerous’ branch of government. Today’s decision shows how far we have come from that original understanding." 15

Family Research Council :

Tony Perkins, president of the Family Research Council (FRC) released a statement:

"This lawsuit, should it be upheld on appeal and in the Supreme Court, would become the 'Roe v. Wade' of same-sex 'marriage,' overturning the marriage laws of 45 states. As with abortion, the Supreme Court's involvement would only make the issue more volatile. It's time for the far Left to stop insisting that judges redefine our most fundamental social institution and using liberal courts to obtain a political goal they cannot obtain at the ballot box.

"Marriage is recognized as a public institution, rather than a purely private one, because of its role in bringing together men and women for the reproduction of the human race and keeping them together to raise the children produced by their union. The fact that homosexuals prefer not to enter into marriages as historically defined does not give them a right to change the definition of what a 'marriage' is.

"Marriage as the union between one man and one woman has been the universally-recognized understanding of marriage not only since America's founding but for millennia. To hold that the Founders created a constitutional right that none of them could even have conceived of is, quite simply, wrong.

"FRC has always fought to protect marriage in America and will continue to do so by working with our allies to appeal this dangerous decision. Even if this decision is upheld by the Ninth Circuit Court of Appeals -- the most liberal appeals court in America -- Family Research Council is confident that we can help win this case before the U.S. Supreme Court." 8

Tony Perkins is correct. Just as Roe v. Wade legalized early abortions across the country, Perry v. Schwarzenegger has the potential of legalizing marriage for all loving, committed couples across the nation, whether they be of the opposite-sex or the same-sex. But Loving v. Virginia, a 1967 decision by the U.S. Supreme Court would be a much better analogy than Roe v. Wade. It redefined marriage by declaring all of the anti-miscegenation state laws in the U.S. unconstitutional, and allowing inter-racial couples to marry across the country.

A careful reading of Judge Walker's ruling would reveal that Judge Walker does not advocate the redefinition of marriage. He merely concludes that the due process and an equal protection clauses in the 14th amendment of the U.S. Constitution require that same-sex couples be be eligible to enter the existing institution of marriage.

Tony Perkins seems to imply that the only purpose of marriage is for the couple to create children through their own actions and subsequently raise them. Like purpose of marriage as viewed by the proponents of Prop. 8, such a belief denigrates the role of adopting parents throughout the country. It also fails to recognize the massive numbers of lesbians who are giving birth and raising children with the assistance of their partners or wives. It also denigrates the marriages of couples who are infertile because of their age or for other reasons. He owes these couples an apology. Their marriages are not without purpose.

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The American Society for the Defense of Tradition, Family and Property (American TFP):

"In making the decision, Justice Walker has taken upon himself the task of defining marriage based on the faulty logic that marriage is defined by any committed relationship."

"Marriage is not a mere form of relationship such as a friendship or a business partnership. Nor is it the legalization of a passion. It is a mutual self-giving between a man and a woman for the purpose of raising a family. Even if, for a number of reasons, this union may not result in children, it still is the only institution that allows children to grow naturally and be raised in normal conditions for their psychological and moral development.

"According to Judge Walker, traditional marriage is 'nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.' In dismissing any other criteria than equality, the judge denies the notion of this august union instituted by the Creator himself in its present form through natural law, and confirmed by Revelation, for the perpetuation of the species."

"The ruling unmasks how the homosexual movement’s promotion of same-sex 'marriage' deprives marriage of its rational end, belittles a higher moral law and disregards the majority of California who hold marriage to be sacred. Americans must reject this decision which will now be appealed to the U. S. Court of Appeals for the Ninth Circuit."

They apparently believe that that children of same-sex married couples will be unable to grow "naturally" and have a normal "psychological and moral development." The defendants during the trial quoted a number of studies which they presented as showing that children of same-sex parents were disadvantaged. But Judge Walker correctly pointed out in his ruling that all of the studies that were cited had compared families headed by opposite-sex married parents with single parent families, who often suffered financially. More recent long-term studies which directly investigate the development of children in families led by same-sex couples shows that they are not disadvantaged.

With their references to God and Revelation, the American TFP has given excellent reasons why religious conservatives might reject religioussame-sex marriages. However, that was not the topic before Judge Walker. The lawsuit dealt with civil same-sex marriages. Churches are guaranteed the right by the First Amendment to the U.S. Constitution to discriminate on any grounds that they wish when providing religious marriage ceremonies or sacraments. The lawsuit was about whether access to civil marriage is guaranteed loving, committed same-sex couples under the Fourteenth Amendment to the U.S. Constitution.

Their comparison of loving, committed same-sex relationships to a mere friendship or a business partnership may reflect a belief common among religious and social conservatives that male gays and lesbians are capable only of lust and not of actual love. 10

Bill Atwell of Chuck Colson's Breakpoint weighs in:

Atwell recognized that "Justice Walker cited the 14th Amendment, specifically the Equal Protection Clause, in his reasoning..." But he concluded that Walker "... seems to be more concerned with pandering to the gay lobby than following the Constitution."

Atwell writes:

"The term 'gay marriage' is a logical contradiction. First, homosexuality is not a legitimate lifestyle, even though many are forcing the issue. Secondly, to be gay inherently means you cannot be married because you lack a natural bond with your partner. Marriage is supposed to be procreative and express a conjugal, permanent love that is only expressed when two people are complimentary in both body and soul. Men and women can share in procreation and conjugal love, but homosexuals cannot. 'Gay Marriage' is as illogical as a 4-cornered triangle, since the definition of one negates the possibility of the other."

His definition of marriage is certainly true from a heterosexual protection. But if he took the time to befriend some loving, same-sex, committed couples -- particularly couples who have been together for decades -- he would probably realize that complimentary sexual organs are immaterial. Again, by implication,he denigrates the validity of opposite sex couples in which one or both are infertile. One might ask why older single opposite-sex couples get married. If they are beyond the age at which conception can occur, then they obviously cannot share in procreation.

The foundation of the SSM debate is clearly what the definition of marriage is. If its main purpose is to raise children, then adopting couples of any age can fulfill that purpose. Opposite-sex couples who are unable to procreate themselves can join with lesbians and gay couples and utilize artificial insemination or in-vitro fertilization in order to procreate and raise children. It is going to take some fancy footwork to settle on a new definition and purpose for marriage that does not devalue at least some opposite-sex couples.

Atwell continues:

"If we learn anything from this tragic decision from yet another leftist judge is this: do not buy into liberalized religious definitions. Marriage rejects homosexual relationships by their very nature. Whether these marriages become legalized or not does not mean they have any validity within the Church or within a legal system of ethics and reason."

It is important to realize that same-sex couples often seek civil, not religious marriage; many have had very negative experiences with organized religions.

References used:

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